Court Sides With ACLU On Unconstitutionality Of The DHS's No-Fly List

from the prying-our-rights-out-of-the-govt's-cold,-undead-fingers dept

Some good news has arrived on the Homeland Security front (although the department in charge of securing the Homeland probably wouldn't agree). Last time we visited the infamous "No Fly List," a federal judge (Anna J. Brown) wasn't buying the government's arguments in favor of preserving the list's lack of transparency or redress options. The ACLU, arguing on behalf of 13 list members, pointed out that the system violates citizens' (there are more than 20,000 names on the list) right to due process.

As if being on the list and having no way to be removed wasn't enough of a problem, the government made it clear it believed air travel and international travel in any form were luxuries granted by the State. The government's argument was Marie Antoinette-esque in its dismissive simplicity: let them drive cars.

During deliberations, Judge Brown swiftly undercut the government's argument that air travel is nothing more than a "convenience."

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

The government apparently failed to make any further inroads at impressing the judge over the past couple of months. The ACLU announced today that the federal court has found in its favor.

A federal court ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union. The suit challenges the process for attempting to get off the list as unfair, inadequate, and unconstitutional. The decision also asked the ACLU and the government to submit additional information about the No Fly List redress procedure in order to help the court decide the ultimate question of whether it satisfies the Fifth Amendment's guarantee of due process.

We'll likely be waiting quite some time for the government to get its input together, if other TSA-related input-gathering efforts are any indication. As it stands now, the so-called redress procedure offered by the DHS is a pointless waste of paper for everyone involved. Here's that procedure in all its glory.

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

That's not due process. That's a form letter awaiting a name to insert between the placeholder brackets.

In her ruling, Judge Brown reiterated the her problems with the government's insistence that air travel is a "convenience."

"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list."

This is good news for the 20,000 unwilling participants in the DHS's no-fly program. I would imagine the government will be appealing this decision as any changes to its (lack of) redress process will probably cause "grave damage to national security," especially as it will now require the DHS to divulge some sort of actual information as to why Person A is on the list.

More likely the real reason for this opacity is to prevent the public from recoiling in horror at the briefest peek into the crafting of War on Terror™ sausage -- a process that seems to involve running a variety of amendments through the grinder along with handfuls of tax dollars. This win is a small push back against that apparatus and stakes another one of ACLU's flags into a chunk civilly liberated territory.

Re: Government Blessings

You are making the common error that your rights are just those enumerated in the Constitutional Amendments (the very rights the authors were reluctant to list any at all). The Constitution defines the limits of government, not the totality of our rights.

Re: Re: Government Blessings

You may have missed the point of my argument. You are correct the constitution was not intended to enumerate all of our rights, but it at the very least was intended to prevent the abuse of what are considered at the very least "basic rights". I was talking about that... considering the assault on the 2nd & 4th amendments and how far they have already proceeded, then again, I would ask the question... how much longer before even your basic rights "guaranteed" by our constitution are considered "Luxuries" granted by our government.

I should have used the word "guaranteed" instead of "afford" to better clarify my argument.

Precedent?

Wow... a judge who values "right to due process". This is the first positive news I've seen along these lines. In my dreams, this triggers a domino-like reaction... creates a precedent for all the other you're-not-allowed-to-know-why scenarios that hide behind the banner of preventing terrorism.

I just thought of something. Between the airlines and the TSA, they are actually colluding in a scam to defraud American citizens of their money.

Take this for what it's worth: you buy an airline ticket, you get in line to get on your flight, the TSA denies you entry and you discover you're on the no-fly list. The airline then denies you a refund.

So now, you not only were denied entry on an airline flight but now you can't even get a refund on your ticket because you were denied entry on the flight.

Re:

"how do you force DHS for continuing to do this?"

Remember, when officials go against an established ruling, they lose qualified immunity and are PERSONALLY liable for violations. How long do you think any particular official will continue doing this when it's their personal money on the line?

Re:

What percentage of the ticket fees of refused passengers goes back to the TSA? I'd be willing to bet it's at least 50%. The kickback to TSA is what keeps the list active. They have no incentive otherwise.

Now wait just a cottin' pickin' minute...

"the government made it clear it believed air travel and international travel in any form were luxuries granted by the State"

There is no such thing. The State has nothing to give, it has NO inherent powers or ownership to withhold. It has no power at all except what WE THE PEOPLE give to it. So the State is saying the a privilege that we gave them they can keep from us? How did they even think this argument would work?

Re:

Simple. Put the DHS employee roster on the no-fly list and make it illegal to take someone off it without following the proper procedures which must (by legislated mandate) be transparent, simple and easily understood.

Re: Planes will fall from the sky, I tells you!

At the very last the list should be public so you won't make these people spend money on tickets just to be stopped in the airport. But all this terrorism circus has caused many, many innocents to suffer the consequences. There's a recent case here in Brazil where Qatar Airlines didn't allow a student to board to Bali where she would participate in an international congress because her father made a joke on terrorism (he said something like "Thank God they didn't think you were a terrorist!"). Not only this student lost her opportunity but now she has to pay her debt of $3000 because while the University is public and technically the students don't spend a dime she didn't actually participate making a reimbursement mandatory by the University rules. But that's not all, her family does not have substantial incomes and this kind of debt will take years to be paid. Since we are talking about Brazil and not the US the civil aviation agency is looking into the matter to check if there was no abuse but what surprised me is that even though we have no issues with terrorism this idea is already input into the agency's heads which is a shame - and I think we can thank the US for that as we have to comply with their paranoia to have flights to the US.

Re: As a Law Abiding American...

The court did *not* say that the no-fly list was unconstitutional, nor did it say the redress procedures were unconstitutional. It said that constitutional rights were AT STAKE. It then further went on to request additional information to determine if, in fact, this policy was unconstitutional. Here is hoping the court continues down this path.